from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:15-CV-00445-GKF-FHM)
T. Carlson, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Petitioner-Appellant.
L. Willis, Assistant Attorney General (Mike Hunter, Attorney
General of Oklahoma, with her on the brief), Oklahoma City,
Oklahoma, for Respondent-Appellee.
McHUGH, MORITZ, and EID, Circuit Judges.
MORITZ, CIRCUIT JUDGE.
Smith appeals the district court's order denying his 28
U.S.C. § 2254 petition. For the reasons discussed below,
we reverse the district court's order and remand for
Smith pleaded guilty in Oklahoma state court to drug
trafficking, possessing a firearm as a felon, and a variety
of related charges. Smith's habeas claims center around a
plea offer that one of Smith's attorneys allegedly
didn't communicate to him. Essentially, Smith says that
he rejected a plea offer from the state that his first
attorney presented to him, under which Smith would serve 25
years in prison. Smith's first attorney subsequently
withdrew[, ] and the sentencing court appointed a new
attorney to represent him. Smith says that his second
attorney told him shortly after she was appointed that the
state had withdrawn an offer for a 20-year sentence. But
Smith told his second attorney that his first attorney never
communicated a 20-year offer to him.
On the day his case was set to go to trial, Smith pleaded
guilty without the benefit of a plea agreement. During the
plea hearing, the state told the court that Smith had
rejected its offer for a 20-year sentence. When the
sentencing court asked Smith's second attorney if the
state's recollection of its prior offer coincided with
her own, Smith's second attorney responded, "Yes, it
does." R. 20. But when the court more specifically asked
Smith's second attorney if she discussed the 20-year
offer with Smith, she equivocated and responded, "We
discussed recommendations; we discussed counter-offers; I
conveyed counteroffers. Those were rejected."
It's not clear from this vague response whether
Smith's second attorney meant to convey to the court that
Smith was presented with and rejected the 20-year offer. But
it is clear that she didn't tell the court about
Smith's assertion that his first attorney never
communicated such an offer to him. Nor did she mention that
she didn't represent Smith when plea bargaining began,
despite her representation to the court that she discussed
prior offers with Smith. And adding to this confusion,
Smith's first attorney told the Oklahoma Bar Association
that-contrary to what the state told the sentencing court-the
lowest sentence the state ever offered Smith was 25 years. So
it's not clear from the record what offer the state
actually made and what offer Smith actually rejected.
The sentencing court ultimately sentenced Smith to 30 years
in prison. Smith neither sought to withdraw his plea nor
appealed within the 10 days in which Oklahoma allowed him to
do so. See Okla. R. Crim. App. 2.1(B), 4.2(A). But
more than seven months later, Smith filed an application for
post-conviction relief in state district court, requesting an
appeal out of time.
In that application, Smith alleged that both his attorneys
were constitutionally ineffective-his first attorney for
failing to accurately communicate a favorable plea offer, and
his second attorney for failing to alert the sentencing court
to that issue. Smith further alleged that his second attorney
never advised him that he had meritorious grounds to appeal
his conviction. The state district court denied Smith's
motion because Smith didn't take any steps in the 10 days
following his plea to withdraw the plea or appeal.
See Okla. R. Crim. App. 2.1(B), 4.2(A). It further
found that Smith hadn't shown he failed to appeal or to
move to withdraw his plea through no fault of his own.
See Okla. R. Crim. App. 2.1(E)(1) ("A
petitioner's right to appeal [out-of-time] is dependent
upon the ability to prove he/she was denied an appeal through
no fault of his/her own.").
Smith appealed to the Oklahoma Court of Criminal Appeals
(OCCA), which likewise concluded that Smith hadn't
established that his failure to appeal was through no fault
of his own. See id. Specifically, the OCCA explained
that Smith "knew about the [20-year] plea offer, and
heard his counsel state that it had been rejected, before he
entered his plea of guilty" but nevertheless
"voluntarily entered his plea of guilty, and did not
elect to initiate appeal proceedings." R. 130. In other
words, the OCCA apparently concluded that it was Smith's
fault he didn't appeal because he knew the factual basis
for his appeal during the 10 days following his sentence. It
therefore denied his application for an appeal out-of-time.
And without an appeal out-of-time, the OCCA couldn't
reach his claims that his attorneys were ineffective. See
Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App.
2013) (explaining that "issues that were not raised
previously on direct appeal, but which could have been
raised, are waived for [post-conviction] review" (citing
Okla. Stat. Ann. tit. 22, § 1086)).
Smith then filed the instant petition in federal district
court. Smith's original petition only asserted two
grounds for relief: ineffective assistance [of counsel (IAC)]
by his first attorney for failing to accurately communicate
the state's 20-year plea offer, and [IAC] by his second
attorney for failing to alert the court to the first
attorney's error. More than 17 months later, Smith filed
a motion to supplement his petition, alleging that his second
attorney had also been constitutionally ineffective in
failing to advise him to appeal and move to withdraw his
The district court treated Smith's motion [to supplement]
as a motion to amend; determined that Smith's new [IAC]
claim didn't relate back to the initial filing date; and
concluded that the claim was therefore untimely under [§
2244(d)(1)]. See Fed. R. Civ. P. 15(c). It further
ruled that Smith's two timely [IAC] claims were
procedurally defaulted because the OCCA denied them on
independent and adequate state procedural grounds-i.e., that
Smith neither (1) timely appealed or sought to withdraw his
plea; nor (2) demonstrated that he failed to do so through no
fault of his own. See Banks v. Workman, 692 F.3d
1133, 1144 (10th Cir. 2012) (explaining that constitutional
claims rejected by state court on independent and adequate
state procedural grounds are normally barred from habeas
review in federal court). The district court also concluded
that Smith hadn't shown cause and prejudice to excuse
this procedural default. See Magar v. Parker, 490
F.3d 816, 819 (10th Cir. 2007) (explaining that § 2254
petitioner can overcome procedural default by showing
"cause for the default and actual prejudice"
(quoting Bland v. Sirmons, 459 F.3d 999, 1012 (10th